The perils of not ensuring you have the right order!!

Mrs. Francois v Barclays Bank plc [2017] EWCH 3531 (QB) in the Queen’s Bench Division of the High Court the Judge allowed an appeal against a costs order, which had been made by a Circuit Judge.

The appellant, Mrs Francois, (F) issued a small claim against the respondent Bank (B) for race discrimination. The claim was initially allocated to the small claims track due to the value of the claim. The Court subsequently wrote to F to say that the claim had been listed for a fast track trial, however, there was no order re-allocating the claim to the fast track. The trial was listed for two days where F’s claim was dismissed and F was ordered to pay B’s costs, to be assessed if not agreed, with an interim payment of £25,000.00 to be made.

The trial Judge had noted that there was some confusion over the track allocation, and accepted that there was no order re-allocating the claim, but it could be inferred that the claim must have been allocated to the fast track because the trial had been listed for two days.

F appealed the costs order, submitting that in finding the case had been re-allocated to the fast track even though there was no court order to that effect, the judge had misdirected himself in law.

In the small claims track, the claimant’s costs exposure is minimal, unless there is unreasonable conduct under CPR 27.14(2)(g). With regards notification being provided to a particular track, CPR 26.9 states:-

“When it has allocated a claim to a track, the court will serve notice of allocation on every party”.

Furthermore, this was a decision which could be appealed under CPR 26.11.1.

The High Court Judge held that there is a requirement for re-allocation of a case to a different track to be notified to the parties. While a letter from the Court dated 25th March 2010 referred to listing the matter as a fast track claim, it could not be inferred that the court had made an order re-allocating the claim. The overriding objective and fairness in the administration of justice in litigation required that such a significant and important change was notified to the parties.